Judge OKs emergency work at Seven Falls

Henderson County may spend up to $262K on erosion control

Published: Tuesday, May 7, 2013 at 4:30 a.m.

Last Modified: Monday, May 6, 2013 at 5:49 p.m.

A Superior Court judge paved the way Monday for Henderson County to fund emergency erosion control work at the deteriorating Seven Falls subdivision near Etowah.

After viewing a video of the degraded conditions at Seven Falls, Judge Zoro J. Guice Jr. granted the county's request to use up to $262,000 in bond proceeds to perform remediation work at the defunct golfing community.

"We need to do something as soon as we can, before it degrades to a worse condition," said Guice, who required the county to return to court if the work will cost more than $262,000.

County Attorney Russ Burrell asked the court for permission to use a limited portion of $6 million the county won from a performance bond forfeited by developers. He told the court that work includes cleaning out clogged sediment traps, grading and seeding eroding areas with grass.

"It is work that would be done under any set of circumstances," Burrell said. "It is work that will only cost more if it is done later than if it is done now — hopefully, during the grass-growing season of this year, so we don't wait another year, watching the hillsides go sliding down into the French Broad."

Burrell quoted from a July 2010 court order dismissing a bankruptcy filed by developers Seven Falls LLC, describing how inadequate ground cover, overflowing sediment traps and compromised weirs have led to "advanced deterioration" of the 1,300-acre site.

"That was the property then, almost three years ago," he said. "Nothing has been done to maintain the property since then. It has indeed gotten worse."

Developer Keith Vinson told the court his company fully supports the county's motion that the court approve emergency work to stabilize eroding roads and slopes. But he asked Guice to raise the approved amount to $340,975, "to encompass the totality of the work that needs to be done."

The county's engineering consultant, William Lapsley, did the original design work at Seven Falls and based his estimates on new aerial mapping photos showing the changes in topography from soil loss, Burrell said. His estimate also included 10 percent for contingency.

But Vinson testified his own engineering firm looked at the maps and found 4,200 feet of road, ditch lines and silt fences that weren't included in the 14,800 feet cited by Lapsley.

"Mr. Lapsley — I hate to put it this way; it's a little flippant, but I can't help myself — he missed by about a mile," Vinson told the judge, adding, "We have a contractor ready to put that to contract today and start performing the work."

Burrell said the county wouldn't object to the permitted amount being raised, but added the county must by law accept at least three estimates and award the work to the lowest bidder.

"I guess if it takes three or four more months to do this and we stay on the weekend pattern, we could have a Grand Canyon out there," he said. "I don't want to do something that's going to unduly delay the process."

Since Lapsley knows the property intimately, Burrell said, he should be able to get bids for the work out within the next 30 days.

Guice asked three other attorneys involved in the case to weigh in. Guardian ad litem Walter Carpenter, appointed to represent plaintiffs not yet known to the court, said granting the county up to $262,000 would "cover a lot of bases."

Carpenter said the county could always come back if expenses went beyond $262,000, "but I would prefer that (the court order) have that number in there so when we're ready to go, then they can get the work done. I don't see a downside to that."

Hayley Wells, an Asheville attorney representing TD Bank, agreed, saying the "court should enter an order authorizing emergency work up to the $262,000 and should it become evident that additional funds are needed, the county would have to come back and ask for more money."

Under Guice's order, the county will return to court July 15 to give an update on progress it's made in fixing erosion problems.

Still undecided is how the court will rule on Henderson County's "complaint for declaratory relief," which asks a judge to set out exactly how the county should allocate $6 million in bond proceeds among $8.4 million in potential liabilities. Costs of installing roads, water and sewer have gone up since developers posted their bond in 2007, Burrell said.

"We're asking the court to declare some sort of action for us to proceed on and essentially insulate the county from the liability of choosing the winners and losers in this contest," he said.

<p>A Superior Court judge paved the way Monday for Henderson County to fund emergency erosion control work at the deteriorating Seven Falls subdivision near Etowah. </p><p>After viewing a video of the degraded conditions at Seven Falls, Judge Zoro J. Guice Jr. granted the county's request to use up to $262,000 in bond proceeds to perform remediation work at the defunct golfing community. </p><p>"We need to do something as soon as we can, before it degrades to a worse condition," said Guice, who required the county to return to court if the work will cost more than $262,000.</p><p>County Attorney Russ Burrell asked the court for permission to use a limited portion of $6 million the county won from a performance bond forfeited by developers. He told the court that work includes cleaning out clogged sediment traps, grading and seeding eroding areas with grass.</p><p>"It is work that would be done under any set of circumstances," Burrell said. "It is work that will only cost more if it is done later than if it is done now — hopefully, during the grass-growing season of this year, so we don't wait another year, watching the hillsides go sliding down into the French Broad."</p><p>Burrell quoted from a July 2010 court order dismissing a bankruptcy filed by developers Seven Falls LLC, describing how inadequate ground cover, overflowing sediment traps and compromised weirs have led to "advanced deterioration" of the 1,300-acre site.</p><p>"That was the property then, almost three years ago," he said. "Nothing has been done to maintain the property since then. It has indeed gotten worse."</p><p>Developer Keith Vinson told the court his company fully supports the county's motion that the court approve emergency work to stabilize eroding roads and slopes. But he asked Guice to raise the approved amount to $340,975, "to encompass the totality of the work that needs to be done."</p><p>The county's engineering consultant, William Lapsley, did the original design work at Seven Falls and based his estimates on new aerial mapping photos showing the changes in topography from soil loss, Burrell said. His estimate also included 10 percent for contingency.</p><p>But Vinson testified his own engineering firm looked at the maps and found 4,200 feet of road, ditch lines and silt fences that weren't included in the 14,800 feet cited by Lapsley. </p><p>"Mr. Lapsley — I hate to put it this way; it's a little flippant, but I can't help myself — he missed by about a mile," Vinson told the judge, adding, "We have a contractor ready to put that to contract today and start performing the work."</p><p>Burrell said the county wouldn't object to the permitted amount being raised, but added the county must by law accept at least three estimates and award the work to the lowest bidder. </p><p>Referencing heavy rains the past two weekends, Guice expressed concern that procedural delays might exacerbate erosion problems.</p><p>"I guess if it takes three or four more months to do this and we stay on the weekend pattern, we could have a Grand Canyon out there," he said. "I don't want to do something that's going to unduly delay the process."</p><p>Since Lapsley knows the property intimately, Burrell said, he should be able to get bids for the work out within the next 30 days. </p><p>Guice asked three other attorneys involved in the case to weigh in. Guardian ad litem Walter Carpenter, appointed to represent plaintiffs not yet known to the court, said granting the county up to $262,000 would "cover a lot of bases."</p><p>Carpenter said the county could always come back if expenses went beyond $262,000, "but I would prefer that (the court order) have that number in there so when we're ready to go, then they can get the work done. I don't see a downside to that."</p><p>Hayley Wells, an Asheville attorney representing TD Bank, agreed, saying the "court should enter an order authorizing emergency work up to the $262,000 and should it become evident that additional funds are needed, the county would have to come back and ask for more money."</p><p>Under Guice's order, the county will return to court July 15 to give an update on progress it's made in fixing erosion problems. </p><p>Still undecided is how the court will rule on Henderson County's "complaint for declaratory relief," which asks a judge to set out exactly how the county should allocate $6 million in bond proceeds among $8.4 million in potential liabilities. Costs of installing roads, water and sewer have gone up since developers posted their bond in 2007, Burrell said.</p><p>"We're asking the court to declare some sort of action for us to proceed on and essentially insulate the county from the liability of choosing the winners and losers in this contest," he said.</p><p>Reach Axtell at 828-694-7860 or than.axtell@blueridgenow.com.</p>